CONTRADICTORY PROVISIONS. As a general rule, where there are portions of a will wholly incapable of standing with other portions (and where they cannot both be allowed to operate so as to give the persons to be bene fited a joint estate in the thing), the latter provision must control, as being the latest declaration of the intention of the testator.
5 Yes. Ch. 247 ; 6 id. 100 ; 2 Taunt. 109 ; 2 Mylne & K. 149 ; 2 Mete. Mass. 202 ; 22 Me. 430 ; 6 Pet. 84 ; 1 Jarman, Wills, 411-425.
In Criminal Law. The power of the mind which directs the action of a man.
In criminal jurisprudence, the necessity of the concurrence of the will is deemed so far indispensable that, in general, those persons are held not amenable as offenders againet the law who have merely done the act pro hibited, without the concurrence of the will. This has reference to different classes of per sons who are regarded as laboring under defect of will, and are, therefore, incapable of committing crime.
15. Infants, who, from want of age, aro excused from punishment. The age of dia. cretion, or capacity for crime, is fixed, by the common law of England, at fourteen years. 1 Hale, PI. Cr. 25-29 ; 1 Hawkins, Pl. Cr. c. 1, s. 1 ; 1 Russell, Crimes, 2-6. Below the age of fourteen years all persons, both male and female, are presumed incapable of com mitting felony or other crime. 'For, although the makes a distinction in regard to the age of consent to marriage between males and feniales, fixing it at fourteen in the former and twelve in the latter, no such dis tinction is made in regard to capacity for crime. 1 Hale, Pl. Cr. 25-29.
Below the age of seven years, infante are presumed so incapable of any malicious de sign as not to incur the guilt of felony or of any other crime. Hence an infant below the age of seven years, whatever art or malice he may exhibit in the act constituting the corpus delicti, is nevertheless to go acquit, on account of his presumed incapacity to incur the guilt of crime. 1 Hawkins, Pl. Cr. c. 1, I ; 1 Hale, Pl. Cr. supra.
Between the ages of seven and fourteen years, an infant, although presumed, prima facie, incapable of incurring the guilt of crime, is, nevertheless, liable to trial and to be proved guilty upon the facts of the par ticular case evincing guilty consciousness. The reports abound with eases where clear evidences of criminal consciousness were shown, and of very marked atrocity, from the age of nine years and upward. 1 Russell, Crimes, 2-6 ; 1 Hale, Pl. Cr. 25-29.
16. Persons laboring under mental imbe cility are not amenable for crime. This class of persons has been subdivided according to the character of the malady and the per manency or continuity of its operation. An idiot, or one who suffers an entire defect of mind from birth. The writers upon this sub
ject have attempted to define idiocy as an incapacity " to count twenty, to tell who was his father or mother, or how old he was." Fitzherhert, Nat. Brev. 532 b. But although incapable, perhaps, of other definition than that first given, it is not easily misunder stood such persons are wholly incapable of crime. 1 Hale, Pl. Cr. c. 4. One rendered non compos by sickness or other cause, and where the malady is, therefore, not congeni tal but accidental. This, if it produce an entire defect of mind and will, either per manently or temporarily, is, during its con tinusnee, a bar to all criminal responsibility. 1 Hale, Pl. Cr. 26-29 ; 1 Russell, Crimes, 7, and cases cited by these writers.
Lunacy, which is much the same as the last above, except that it is attended with lucid intervals, during the continuance of which the person is responsible criminally. But care should be exercised to discriminate correctly between a lucid interval, where the mind is fully restored, and a mere remission of the paroxysm, where the patient seems comparatively but not absolutely restored. Taylor, Med. Jur. 642 ; Redfield, Wills, c. sect. xii 14.
11. Persons subject to the power of °there. This exemption from crime, in the English common law, extends to the wife while in the immediate presence and under the power of the husband, but not to a child or servant. And in respect of the enormity of the offences of treason and murder, the wife even is not excused by the command of the husband. 1 Hale, Pl. Cr. 44, 516 ; 1 Havrkins, Pl. Cr. c. 1, s. 14. The wife is liable, too, for all offences committed not in the presence of the husband, and also where she is the principal party concerned. 1 Hawkins, Pl. Cr. c. 1, 14 ; 1 Hale, Pl. Cr. 44, 516. The distinction between the wife and the child and especially the servant, where the relation of master and servant is of a permanent character, or where the law gives the master unlimited control over the acts of the servant, seems not to rest upon any well-founded basis in present social relations. The English law does not regard one in the power of' robbers or of an armed force of rebels as responsible, crimi naliter, for his acts. No more should one he who is wholly under the power of another, as a child or servant may be. 1 Russell, Crimes, 14. See Ch. J. Howe, 18 State Trials, 293, 394. These questions should, in strictness, be referred to the jury as matters of fact. See DURESS.
Ignorance of law will not excuse any one. But ignorance of fact sometimes renders that innocent which would otherwise be a crime : as, where one kills an innocent person, mis. taking him for an assassin or robber. 1 Hale Pl. Cr. c. 6 ; 1 Russell, Crimes, 19, 20.